Q&A on Drones

May 31, 2013

A: Drones, or unmanned aircraft, are most commonly known as part of overseas operations tracking down and killing members of terrorist organizations. Going back to a letter sent in October 2011, I've sought access to information from the Obama administration about its policy regarding targeted killing of Americans using drones, as a matter of transparency and accountability. I questioned the Attorney General directly at a hearing last summer. The Senate Judiciary Committee Chairman, Senator Patrick Leahy, and I publicly discussed the need to subpoena this information before the President and Attorney General agreed to provide it to the Judiciary Committee for oversight.

Including a filibuster by Senator Rand Paul, most of the talk in Congress has been about the military use of drones. In March, however, the Senate Judiciary Committee held a hearing about the domestic use of drones.

Q: What are the issues with domestic use of drones?

A: The prospect of drone use inside the United States raises far-reaching issues concerning the extent of government surveillance authority and privacy in the digital age. Domestic surveillance operations using drones may be for homeland security, crime fighting, disaster relief, border security, and immigration enforcement. There's legitimate concern about insufficient safeguards in place to make sure drones aren't used to spy on American citizens, perhaps unfairly enforce criminal law, and unduly infringe on individual privacy. Congressional action may be needed to reconcile privacy and legitimate domestic drone use.

Q: What about Fourth Amendment protections?

A: The Fourth Amendment keeps Americans free from unreasonable searches and seizures. Core values such as privacy and protection from excessive and arbitrary government intrusion are always within its sweep. Tests for determining whether Fourth Amendment rights have been violated have changed as technology has changed, but the core protections have always remained. A decision this year by the U.S. Supreme Court (Florida v. Jardines) addressed how the Fourth Amendment protects individual privacy just outside the home. In that case, the Court held that law enforcement searches of private property warrant a heightened level of scrutiny. The Supreme Court also affirmed in a decision last year (United States v. Jones) that pervasive tracking using a GPS device, crosses the line and violates the Fourth Amendment. How decisions involving a tracking device apply to drones hasn't been answered by the court, but justices also have indicated that the length of time an individual is kept under surveillance and the breadth of data collected through such surveillance may inform a reviewing court whether a particular surveillance practice constitutes a Fourth Amendment search.